In Mississippi, can a city council interview candidates before appointing them to the local school board?

Subject

Municipal Authority to Interview Candidates for the Okolona School Board

Recipient

Marsha Gates, Councilwoman, City of Okolona

Plain-English summary

Okolona is a special-charter municipality, meaning its governing body's powers come from the city charter rather than the general municipal statutes. The city council was preparing to appoint two members to the Okolona Municipal Separate School District board under Section 37-7-203(1) and asked whether the council could interview candidates first. The AG's answer assumed the charter does not address candidate interviews, and on that assumption the home-rule statute, Section 21-17-5, supplies the authority. Section 21-17-5 grants municipalities "the care, management and control of the municipal affairs" with broad powers "complete without the existence of or reference to any specific authority granted in any other statute or law of the State of Mississippi." Under home rule, the council may interview candidates.

The opinion adds two pointers without deciding them. First, the Mississippi School Boards Association and the Mississippi Municipal League can give guidance on appropriate appointment procedures. Second, the Mississippi Ethics Commission can advise on when interviewing candidates implicates the Open Meetings Act. The AG did not resolve either question.

What this means for you

City council members in special-charter municipalities

The opinion holds that, assuming the charter is silent on the question, the council may interview candidates for school board appointment under the home-rule authority of Section 21-17-5. The AG referred questions about appropriate appointment procedures to the Mississippi School Boards Association and the Mississippi Municipal League, and questions about when interviews implicate the Open Meetings Act to the Mississippi Ethics Commission, without deciding them.

Municipal attorneys

The opinion is expressly conditional on the charter being silent on candidate interviews; where the charter speaks, it controls, following the AG's Carouthers opinion. The AG did not decide whether interviews must be held in open or executive session, referring that Open Meetings Act question to the Ethics Commission.

School board candidates

For a municipal separate school district, Section 37-7-203(1) places the appointment with the municipal governing authorities, and the opinion holds the council may interview candidates before voting. The opinion does not prescribe any interview format.

Citizens and journalists

The opinion does not resolve whether candidate interviews must be open to the public or may be held in executive session under the Open Meetings Act. The AG referred that question to the Mississippi Ethics Commission.

Common questions

What is a special-charter municipality?
A special-charter municipality is one whose powers derive from a charter granted by the legislature, rather than from the general code charter or Title 21 framework. Mississippi has a handful of these, and Okolona is one.

Does Section 21-17-5 actually let the city do anything not specifically forbidden? Effectively yes. Section 21-17-5(1) says municipal home-rule powers are "complete without the existence of or reference to any specific authority granted in any other statute or law of the State of Mississippi." The opinion notes the power is exercised so long as the municipality acts in accordance with the laws of the state.

What about appointments to fill vacancies?
The AG specifically noted the question concerned new-term appointments, not vacancy fills. Section 37-7-203(1) addresses new-term elections "by a majority of the governing authorities." The opinion does not address vacancy procedures.

Can the council interview candidates in private?
The opinion did not decide that. The AG referred the question of when interviewing candidates implicates the Open Meetings Act to the Mississippi Ethics Commission.

Does the school board itself have to appoint?
No. Section 37-7-203(1) for municipal separate school districts puts the appointment in the hands of the municipal governing authorities, not the school board.

How many board members does the city appoint?
The opinion notes the city is appointing two members. The number depends on the school district's structure under Section 37-7-203 and any local act establishing the district.

Background and statutory framework

Section 37-7-203(1) controls the trustees of a municipal separate school district: "[e]xcept as otherwise provided herein, the trustees of such a municipal separate school district shall be elected by a majority of the governing authorities of the municipality." The statute does not address pre-vote interviews.

Section 21-17-5(1) is the municipal home-rule statute. It gives municipalities broad powers over "the care, management and control of the municipal affairs" subject to state law. Where a specific procedural question is not addressed in either the city's charter or another statute, the AG read home rule to fill the gap.

For special-charter municipalities, the AG's general approach (see MS AG Op., Carouthers (June 28, 2019)) is that the charter controls when it speaks; otherwise, general statutes apply. The Gates opinion follows the same framework, and on the assumption that Okolona's charter is silent, applied the home-rule statute. The opinion referred Open Meetings Act questions to the Mississippi Ethics Commission rather than resolving them.

Citations

• Miss. Code Ann. § 21-17-5 (municipal home-rule authority)
• Miss. Code Ann. § 21-17-5(1) (powers complete without reference to other statutory authority)
• Miss. Code Ann. § 37-7-203(1) (trustees of municipal separate school district elected by governing authorities)
• MS AG Op., Carouthers (June 28, 2019) (special charter municipality charter controls; general statutes fill silence)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/06/M.Gates-June-23-2023-Municipal-Authority-to-Interview-Candidates-for-the-Okolona-School-Board.pdf

Original opinion text

June 23, 2023
Marsha Gates
Councilwoman, City of Okolona
301 Middle Street
Okolona, Mississippi 38860
Re:

Municipal Authority to Interview Candidates for the Okolona School Board

Dear Ms. Gates:
The Office of the Attorney General has received your request for an official opinion.

Background
The city of Okolona ("City") is a special charter municipality and its governing body, the Okolona City Council ("Council"), is comprised of the mayor and Council. According to your request, the governing body of the City is appointing two school board members to the Okolona Municipal Separate School District ("District") pursuant to Mississippi Code Annotated Section 37-7-203(1). Question Presented May the governing body of the City interview candidates for a school board position? Brief Response Assuming the City's charter is silent regarding interviewing candidates for appointment on the school board for the District, the Council may interview candidates pursuant to its "home rule" authority set out in Section 21-17-5. Applicable Law and Discussion As a special charter municipality, the governing authority's powers flow directly from the City's charter. MS AG Op., Carouthers at 1 (June 28, 2019). Thus, the specific provisions of that charter should be used to answer any questions regarding the authority of the municipality; however, if the charter is silent on a particular matter, general statutory provisions would apply. Carouthers at
1 (internal citations omitted). Assuming the special charter of the City is silent on your question, this opinion will apply general statutory provisions. As an initial matter, when you say in your request that the governing body of the City will be appointing school board members, we understand that those appointments will be for new terms on the board and are not appointments to fill vacancies. Regarding appointments for new terms, Section 37-7-203(1) states, "[e]xcept as otherwise provided herein, the trustees of such a municipal separate school district shall be elected by a majority of the governing authorities of the municipality." We find no statutory provision authorizing a municipality to interview candidates for the local school board or prohibiting same. Therefore, we turn to the municipal "home rule" statute which grants the governing authorities of municipalities "the care, management and control of the municipal affairs" so long as the municipality acts in accordance with the laws of the state, and "the powers granted to governing authorities of municipalities in this section are complete without the existence of or reference to any specific authority granted in any other statute or law of the State of Mississippi." Miss. Code Ann. § 21-17-5(1). Thus, it is the opinion of this office that the Council may interview candidates for appointment on the District's school board pursuant to Section 21-17-5. We refer you to the Mississippi School Boards Association and the Mississippi Municipal League for further guidance on appropriate procedures. In addition, we recommend that you contact the Mississippi Ethics Commission for guidance on when the interviewing of potential board members implicates the Open Meetings Act. If this office may be of any further assistance to you, please do not hesitate to contact us. Sincerely, LYNN FITCH, ATTORNEY GENERAL By:

/s/ Abigail C. Overby
Abigail C. Overby
Special Assistant Attorney General